Volume 1,
Issue 2,
2007

This is the second issue of the maiden volume of the Malawi Law Journal (MLJ). At the beginning of this year, when the MLJ was founded, it was beyond the imagination of the Editorial Board that we could produce two issues by the end of 2007. Our goal at that time was to make sure that all the preparatory work was done for the launch of the journal and produce one issue as a bonus. It is incredible that we have managed to produce two issues this year. For this reason, it is fitting to pay tribute to all those who have contributed to making this project a success.

The question of democracy has been a focal point of the discourse on human rights in Africa for decades. It is an issue which has now assumed a central position in regional discourse within the African Union as reflected in the adoption of the African Charter on Democracy, Elections and Governance (Charter) in January 2007. This article critically evaluates the substantive and implementation provisions of the Charter. It argues that the Charter is a landmark development principally because it recognises the right to democratic governance in Africa, which is critical to the development of the continent. However, it also demonstrates that the Charter falls short of expectations in certain areas. For example, its provisions on democratisation are not particularly strong compared to those contained in the declarations and resolutions of the African Union on the subject, thereby giving the impression that African leaders developed cold feet when faced with the prospect of a binding regional treaty on issues of democratisation, good governance and the rule of law. In spite of its weaknesses, the Charter has a great potential to entrench democracy in Africa if African leaders can give it the political support it deserves.

A heated debate is currently waging on among human rights activists and scholars as to whether globalisation is good or bad for human rights. Little systematic evidence is available on the overall human rights impact of globalisation and that which does exist is often contradictory. Whether globalisation promotes or hinders human rights is not something that can be determined quantitatively. It cannot be determined by adding up the numbers of jobs created and comparing them with the numbers of those lost. This article does not take a position on the issue but rather examines both sides of the coin; the positive and negative impact of globalisation on the enjoyment and protection of human rights in Africa. It argues that globalisation is a tool with great potential to promote human rights if its gains are aggregated and harnessed and its adverse effects mitigated. The full potential of globalisation could be realised by adopting a human rights-based approach to globalisation.

A trend in the approach of the United States of America (US) to the international human rights regime has emerged, which involves the use of non-self-executing (NSE) declarations. Unlike traditional explanations, this article posits that the use of such declarations has emerged as a symptom of America?s vision of international law, which undermines the binding character of international law and human rights law in particular. US foreign policy typically commands adherence only to treaties that serve to promote its various demands and rejects those which do not meet these demands. This article explores the way in which NSE declarations enable the US to achieve such a foreign policy. Moreover, it demonstrates that these declarations have the effect of denying individuals in the US the greater protection of human rights that international law offers and of violating international law and the Constitution of the US.

The past two decades have witnessed a proliferation of international and regional courts dealing with wide-ranging fields of law. Regrettably, except in the human rights law field, little attention has been paid to international dispute settlement in the study of law and the legal discourse in Malawi. Using the World Trade Organisation (WTO) dispute settlement as an example, this article demonstrates that international dispute settlement mechanisms and jurisprudence are relevant to Malawi in several ways. As Malawi is a member of the WTO, knowledge of WTO law is critical to ensuring that the country participates effectively in the system. Secondly, international law plays an important role as an aid to constitutional interpretation and as a source of law in Malawi. Thirdly, most of the WTO rules and dispute settlement procedures have been imported into the SADC Protocol on Trade to which Malawi is a party. Some practical suggestions are made as to how the jurisprudence in international adjudication can be used and incorporated in Malawian legal discourse.

The Malawian Constitution protects a handful of socio-economic rights in the Bill of Rights and enshrines the rest as part of directive principles of national policy. The only socio-economic rights expressly protected in the Bill of Rights are the right to education; the right to participate in cultural life of one's choice; the right to engage freely in economic activity, to work and pursue a livelihood; and the right to development. Socio-economic rights are thus not given the same level of protection as civil and political rights. Yet the Malawi Law Commission (Commission) in its current review of the Constitution has not identified these rights as a point of focus. The attitude of the Commission reflects the ideological position that regards socio-economic rights as incapable of judicial enforcement and as being inferior to civil and political rights. This article outlines the theoretical basis for including socio-economic rights as justiciable protections within the Malawian Constitution.

Section 7 of the Constitution of Malawi (the Constitution) provides that the executive has the responsibility of initiating policies and legislation and implementing laws in a manner that 'embod[ies] the express wishes of the people of Malawi and which promote[s] the principles of the Constitution.'

This article is about the approach to constitutional interpretation as reflected in the recent decision of the Supreme Court of Appeal of Malawi (SCA) in the Presidential Reference on Section 65 and the ramifications of such an approach for constitutional jurisprudence, its development and its effect on the separation of powers doctrine in Malawi.

This is a review of the report by Edge Kanyongolo examining Malawi's justice sector and the rule of law. The report was commissioned by the Open Society Foundation's Africa Governance Monitoring and Advocacy Project (AfriMap) and the Open Society Initiative for Southern Africa (OSISA). These two institutions work in collaboration with African civil society organisations to foster the ideals of good governance and respect for the rule of law in various African countries.